SCOTT SIMON, host:
Any grade school student learns that the United States has three equal branches of government. But at various times in history, one branch has been more equal than the others. Sometimes Congress has been more assertive, sometimes the courts, and sometimes presidents. An intense debate is now going on about presidential power to run the war in Iraq. In his new book, "This Mighty Scourge," James McPherson writes that Abraham Lincoln might be considered the president most responsible for increasing presidential power in wartime. Mr. McPherson, who won the Pulitzer Prize for his one-volume history of the Civil War, "Battle Cry of Freedom," joins us now from Princeton University. Professor, thanks so much for being with us.
Professor JAMES MCPHERSON (Author): Well, thank you for having me.
SIMON: In fact President Lincoln, you suggest, may have invented that phrase war powers.
Prof. MCPHERSON: In his first message to Congress, a special session of Congress that he called a few months after the war broke out on July 4th, 1861, Lincoln told the Congress that because of the outbreak of the war he found it necessary to call out the war power of the government to suppress this insurrection. And so far as I and other scholars have been able to determine, that is the first use of that phrase by a president.
SIMON: He declared a blockade around Fort Sumter in South Carolina, which was an act of war without congressional approval. He increased the size of the army. What argument did he offer to do that?
Prof. MCPHERSON: He argued that this was an emergency, that Congress was not in session and could not be called into session, and that to fulfill his oath to preserve, protect and defend the Constitution, he needed to preserve, protect and defend the nation from the war that had started by the confederates firing on Fort Sumter. And when Congress did meet in July, 1861, he informed them of what he had done and asked Congress in effect to ratify retroactively what he had done, and they proceeded to do so.
SIMON: Let me ask you about Clement Vallandigham, Senator Vallandigham. He attacked the war. He called for a ceasefire and negotiations with the South. And the Union Army had suffered reverses in the spring of 1863, so the war was unpopular. And a military court convicted the Senator of uttering disloyal sentiments. I want to be careful with historical analogies, but it would almost be as if let's say Senator Feingold of Wisconsin were taken in today, arresting someone who was a lawful political opponent of an ongoing war, detaining them, putting them into exile. I mean, my gosh, this strikes me as just an extraordinary abrogation of civil liberties.
Prof. MCPHERSON: That's exactly what Lincoln's opponents said. Lincoln chose to reply to them, and his argument was twofold. First, that it wasn't merely because of a speech that Vallandigham had made that he was arrested, but that the effect of Vallandigham and others like him was to provoke resistance to the draft, which had just gone into effect in the North, and desertion from the Army. And in fact there was widespread desertion. It was not merely a question of free speech, Lincoln said, but of resistance to the ability of the North to wage the war upon which the life of the nation depended.
SIMON: Do you find any kind of contemporary resonance in the debate going on now and Lincoln's actions during the Civil War?
Prof. MCPHERSON: Superficially, I think you can make an analogy between President Bush's suspension of habeas corpus for those interned at Guantanamo and others, and his establishment of military courts to try these people, and Lincoln's suspension of the writ of habeas corpus and his executive order in September of 1862 declaring martial law throughout the entire country and making it possible for civilians to be tried by military courts. The constitutional grounds on which Lincoln did this was the statement in the Constitution that the privilege of the writ of habeas corpus shall not be suspended unless in cases of invasion or rebellion, the public safety may require it. We unquestionably had a case of rebellion in 1861 to 1865. And all of those people who were in fact jailed, some of them only temporarily, were supporting or at least sympathetic with that rebellion.
But in the case of the detainees at Guantanamo and others who have been arrested, all of this has been done abroad and there's no - it's not a question of rebellion in the United States, certainly. I suppose the administration might be able to make the case that terrorists are engaged in an invasion or planned invasion of the United States. But it's a pretty farfetched, I think, analogy. So I think that's where any invocation of Lincolnian precedent for what is happening now tends to break down.
SIMON: James McPherson, professor of history emeritus, Princeton University, and author of a new collection of essays, "This Mighty Scourge: Perspectives on the Civil War." Professor McPherson, thanks so much.
Prof. MCPHERSON: Well, thank you.